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Marco Civil – A groundbreaking, although not perfect, victory for Brazilian Internet Users

The following is a guest post by Mozilla public policy contributor Norberto Nuno Andrade of the Berkeley Center for Law & Technology.

Yesterday, the Bill known as The Marco Civil or the “Internet Civil Rights Framework” was finally voted and approved by the Brazilian House of Representatives. It has been almost seven years since its inception as an academic draft proposal. After lengthy and enthusiastic discussions held by the Brazilian civil society through a pioneering public consultation process, and its stalemate in the Congress which postponed the voting of the Bill over ten times, the Marco Civil is now a reality, pending only its approval by the Senate and the President.

The Marco Civil constitutes the first comprehensive set of Internet rules in Brazil. It establishes a list of principles, guarantees, rights and responsibilities for Brazilian individuals, government and companies regarding Internet use. And, importantly, it is based on the principles of freedom of expression, privacy protection and network neutrality. For those advocating in favor of a free, open and accessible Internet in Brazil, the Marco Civil is a groundbreaking victory.

Although, as with most victories, this one is not absolute. Even though the problematic requirement for global Internet companies to establish data centers in Brazil was erased from the final version, another controversial amendment regarding Internet users’ privacy remained. This is the case of the provision on mandatory data retention (art. 15), which weakens to an important extent the right to privacy of Brazilian Internet users by requiring sites to keep access and usage logs of their online services for six months. This requirement covers not only connection logs, but also navigation and other application logs. While bloggers, sites and applications with no profit-making intentions are exempt, Article 15 imposes an unprecedented duty to all “for profit” Brazilian web entities without the requirement to obtain the user’s consent. The storage requirement exacerbates the risk of having data being misused and imposes higher economic and technical burdens on companies to keep all of this sensitive data properly and securely stored.

Still, the Marco Civil attains a positive balance between the commercial goals, the legal enforcement needs and the public interest objectives of the Internet. This Bill sets forth important (and needed) digital rights for Brazilian citizens; brings clarity to the online legal landscape where companies need to operate; preserves the open nature and decentralized architecture of the Internet; and protects freedom of expression and privacy online, while ensuring network neutrality and promoting innovation. The Marco Civil, as a comprehensive piece of legislation regulating the use of the Internet, is groundbreaking in its nature, scope and purpose, and will hopefully lead other countries to follow suit in adopting strong protections for openness and privacy online.